Wisconsin River Valley District Council

National Labor Relations Board - Board Decisions

Jun 7, 1974

211 N.L.R.B. 222 (N.L.R.B. 1974)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisconsin River Valley District Council of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and rSkippy Enterprises, Inc. Case
30-CB-626
June 7, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 26, 1974, Administrative Law Judge
Arthur Leff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Wisconsin River
Valley District Council of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,
Wausau, Wisconsin, its officers, agents, and repre-
sentatives , shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a
charge filed August 20, 1973, by Skippy Enterprises, Inc.,
the General Counsel of the National Labor Relations
Board , by the Acting Regional Director of Region 30,
issued a complaint, dated November 14, 1973, against the
labor organization named above, Respondent herein,
alleging that Respondent had engaged in unfair labor
practices within the meaning of Section 8(b)(1)(B) and
Section 2(6) and (7) of the National Labor Relations Act
by conduct hereinafter specified. Respondent filed an
answer in which it denied the commission of the alleged
unfair labor practices and asserted by way of an affirma-
tive defense that the complaint's alleged unfair labor
practices are time-barred by the limitations proviso of
Section 10(b) of the Act. A hearing was held at Wisconsin
Rapids , Wisconsin, on January 3, 1974. Briefs were filed by
the General Counsel, by Respondent, and by the Charging
Party on January 30, 1974.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. COMMERCE
Skippy Enterprises , Inc. (Employer), a Wisconsin corpo-
ration with its principal office located at Stevens Point,
Wisconsin, is engaged in the building and construction
industry. During 1973 , a representative period , the Em-
ployer's indirect purchases of goods and materials emanat-
ing outside the State of Wisconsin were of a value in excess
of $50,000. Respondent admits , and it is found, that the
Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent , Wisconsin River Valley District Council of
the United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
This case is concerned with an alleged 8(b)(1)(B)
violation. More specifically, Respondent is charged with
violating that section of the Act by instituting internal
union disciplinary proceedings against Raymond Schulist
for failing to comply with a "no contract-no work" order of
Respondent, by levying a fine of $1,300 against Schulist for
that union offense, and by thereafter instituting a state
court action against Schulist to collect that fine . Schulist is
alleged at the times material herein to have been employed
by the Employer as a construction superintendent. Res-
pondent admits taking the disciplinary action stated in the
complaint. It disputes, however, that Schulist was em-
ployed in a superintendent's capacity and was a represent-
ative of the Employer within the meaning of Section
8(b)(1)(A). It further asserts that, even if Schulist did
occupy a supervisory position, it cannot be held to have
violated Section 8(b)(1)(B), both because it had no
knowledge of Schulist's supervisory status at the time the
disciplinary action was taken, and because the union
offense for which Schulist was fined was related solely to
work he performed as a carpenter and had nothing
whatever to do with his performance of supervisory duties.
In addition, Respondent pleads affirmatively that the
Board "lacks jurisdiction" over the alleged unfair labor
practices because the fine was levied on September 30,
1972, and the charge herein was not filed until August 20,
1973, more than 6 months later. The complaint anticipates
the 10(b) defense, alleging as a response thereto that
Schulist was not made aware of the fine until June 22,
1973, when the state court collection action was filed. It is
the General Counsel's position that the 10(b) limitations
period did not begin to run until knowledge of the union
disciplinary action was brought home to Schulist.
211 NLRB No. 40
WISCONSIN RIVER VALLEY DISTRICT COUNCIL 223
B. Chronology of Events
For some years prior to 1972, the Employer was either a
party to, or had agreed to be bound by, collective-
bargaining agreements negotiated by Respondent with
area building contractors covering their carpenter employ-
ees. The last contract to which the Employer had agreed to
be bound was for a term that expired in April 1971.
Thereafter, apparently in January 1972, a new contract was
negotiated by Respondent with a negotiating committee
for area contractors, but a substantial number of contrac-
tors, the Employer among them, who had previously been
signatories to contracts with Respondent, refused to
become parties to the newly negotiated agreement. As a
result, the constituent locals of the Respondent Council
adopted a "no contract-no work" resolution, and, on
February 21, 1972, issued a notice to all their members
prohibiting such members from performing work for any
building contractor that did not have an executed
collective-bargaining contract with Respondent. It is
undisputed that Raymond Schulist, then a member of one
of Respondent's constituent locals, was given notice of
Respondent's "no contract-no work" order.
At the time of the issuance of the "no contract-no work"
order, Schulist was working for Respondent at a large
construction project at Stevens Point, Wisconsin, known as
the Madison View Apartments project. Although Schuhst
was then an hourly rated employee who was being
compensated at the regular scale for journeyman carpen-
ters , it is the position of the General Counsel and the
Charging Party, which I find in the subsection below to be
supported, that Schulist had been vested with sufficiently
substantial authority by the Employer to place him in the
category of a supervisor within the meaning of the Act. It is
not disputed by the General Counsel and the Charging
Party, however, that in addition to his supervisory duties,
Schulist, both before and after the "no contract-no work"
order became effective, spent a substantial portion of his
working time at the project performing manual work as a
carpenter.
When Schulist received notice of Respondent's "no
contract-no work" order, he discussed the order with
Chester Skippy, the Employer's president and sole owner.
Skippy told Schulist that it was up to him (Schulist) to
determine whether or not to comply with the order, that
Schulist could do as he pleased, but that if Skippy were in
Schulist's shoes and occupied a position as "superintend-
ent" on the job he would continue to work. Schulist, acting
on that advice, decided not to comply with the "no
contract-no work" order and thereafter continued to
perform his previous functions on the job, not only those of
a supervisory nature, but those of a carpenter journeyman
as well.
Prior to the issuance of the "no contract-no work" order,
Edwin F. Kiyek, Respondent's business representative, had
visited the Madison View Apartments construction project
on a number of occasions and had observed Schulist
performing work at that project of a kind customarily
performed by journeyman carpenters. After the effective
date of the order, Kiyek again visited that project where he
observed Schulist performing journeyman carpenter work
in apparent disregard of that order. The Union had never
been informed by either the Employer or Schulist that
Schulist had been delegated supervisory responsibilities,
and Kiyek, as appears from his credited testimony, had no
independent knowledge of that fact. Kiyek assumed from
the fact that the Employer continued to make contrib-
utions for Schuhst in Respondent's health and welfare fund
that Schulist, both before and after the "no contract-no
work" order, remained in the category of a union member
journeyman carpenter.
On May 5, 1972, Kiyek filed a complaint with the Union
that Schulist was violating Respondent's "no contract-no
work" order by continuing to work for the Employer
notwithstanding the Employer's failure to sign Respon-
dent's current working agreement. Based on Kiyek's
complaint, Respondent issued a summons for Schulist to
appear before Respondent's executive board on May 26,
1972. It is not clear whether this summons was actually
served on Schulist; Schulist testified that he could not
recall receiving it, and Respondent offered no independent
proof at the hearing to establish service of that summons.
The record does clearly establish, however, and this is
admitted by the General Counsel, that subsequently, on
September 15, 1972, a further summons issued by Respon-
dent was served on Schulist calling on him to appear
before Respondent's trial committee to defend charges
against him that he had violated Respondent's "no
contract-no work" order. Schulist chose to ignore that
summons and did not appear at the scheduled hearing
before the trial committee. On September 30, 1972, a trial
of Schulist was conducted by Respondent's trial commit-
tee; Schulist was found guilty, as charged, of violating
Respondent's "no contract-no work" order by performing
work for the Employer while that order was in effect; and a
fine of $1,300 was levied against him for that union
offense.
On or about June 22, 1973, Respondent instituted a
lawsuit against Schulist in the Circuit Court of Portage
County, Wisconsin, for the collection of the $1,300 fine. It
is undisputed that no prior notice of the actual imposition
of the fine had been given by Respondent to Schulist or the
Employer, and that Schulist and the Employer learned of
the fine for the first time when the summons and complaint
was served on Schulist in the state court action.
Shortly after the institution of the state court collection
action, Schulist and Skippy in separate letters addressed to
Respondent's attorney protested the disciplinary action
taken by Respondent , asserting , inter alia, that Schulist had
been employed as a supervisor and therefore was not
properly subject to discipline by Respondent. As appears
from Kiyek's testimony, this was the first notice given the
Respondent that Schulist's position with the Employer was
claimed to be a supervisory one. Counsel for Schulist,
responding to the complaint, also asserted, in part, that the
fine levied against Schulist was unlawful under the Act
because he had been employed as a supervisor, and
requested in effect that the state court collection action be
withdrawn for that reason. In response, counsel for
Respondent advised Schulist's counsel, under date of July
20, 1973, that "the position of the union is that [Schulist]
was non-supervisory but that even if he were [a supervisor]
the recent decisions in the 9th C.A. and the C.A.D.C.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorize the -imposed fines." Respondent declined to
withdraw the state court action it instituted to collect the
-fine.-On Aug et-2O, 1973, the Employer filed the 8(b)(l)(B)
unfair labor practice charge giving rise to this proceeding.
C. As to Sehulist's Supervisory Status
1. The testimony
Respondent called no witnesses of its own on the issue of
Schulist's supervisory status, and the evidence in the record
relating to it is confined to testimony given by Schulist and
by Chester Skippy, the Employer's president and sole
owner . The following appears from their mutually corrobo-
rated and uncontradicted testimony.
Schulist has been in the Employer's employ since 1967.
Prior to March 1971, his regular work duties had been
those of a nonsupervisory journeyman carpenter, but he
had on several occasions been entrusted by Skippy to run
small jobs for the Employer. Richard Blenker had been
employed by the Employer as its job superintendent and
had supervised the Employer's larger jobs.
In March 1971, the Employer began work on the
Madison View Apartments construction project at Stevens
Point, Wisconsin . This was the largest job the Employer
had ever undertaken. That project, which was being
erected at a total cost of $1.2 million, was spread over a
large area , two city blocks long and one city block wide,
and consisted of 14 buildings, including 13 apartment
buildings containing from 14 to 20 apartments each. Under
the contract awarded the Employer-at the price of
$600,000-the Employer was to do the carpentry, masonry,
and concrete work on the project and also perform the on-
site duties of a general contractor. The Employer's part of
the work required its use of carpenters, bricklayers, cement
finishers, laborers, and an operating engineer.
When work on the project began, Skippy assigned
Blenker to the job as the Employer's project superintend-
ent. About 2 weeks later, however, Blenker had a
disagreement with Skippy and quit. Skippy then asked
Schulist to take Blenker's,place as superintendent. Skippy
told Schulist that he wanted Schulist primarily to run the
carpentry end of the job, but that he also expected Schulist,
with his (Skippy's) help, to act as job superintendent and
assume full managerial responsibility over all aspects of the
Employer's work on the project. Skippy explained that he
did not know when other work would call him away from
the project, and that he therefore wanted to place Schulist
in a position of full command so that Schulist alone could
run the job should Skippy's absence become necessary.
Schulist's "promotion" to the station of "job superin-
tendent" did not carry with it an immediate raise in pay.
Skippy told Schulist that he intended eventually to put him
on a salary, but that he was not in a financial position to do
so at that time. Thereafter, at all times material herein,
Schulist continued to work as an hourly rated employee,
receiving the journeyman carpenter's rate of pay, the same
as that of other journeyman carpenters on the job. This
held true until some time in the fall of 1972, when Schulist,
then serving as a job superintendent for the Employer on
another work project, was first placed on a salary and also
given a vehicle, the latter apparently regarded as a
perquisite of superintendent status.
The project had basically two construction stages: the
roughing in stage and the finishing stage . The first stage
consisted of the excavation, the laying of the foundation,
and the laying out and construction of the framework and
partitions of the buildings. That stage took from March
1971 to September 1971. During that stage, the Employer
had 18 to 25 employees working on the project. The second
stage consisted of all the other work required to make the
buildings ready for occupancy. That stage started in
September 1971 and was completed in May 1972. During
the latter stage the Employer had a reduced complement of
8 to 10 employees working at the project.
During the roughing in period, Skippy was personally
present at the project site about 90 percent of the working
time.' The employees engaged in the roughing in work
were divided into two crews, simultaneously working on
separate buildings. Schulist controlled the work of one of
the crews; and Jim Guzman the work of the other.2
Schulist during this period spent about 90 percent of his
time physically working with the tools of his trade, e.g.,
hammer and saw, performing layout and other work of a
kind that is generally classified as journeymen carpenter
work. During this period, Schulist also assigned work to
employees on his crew, instructed them on layouts,
inspected the work done by them, saw to it that improper
work was corrected, attended along with Skippy confer-
ences with the architect or owner when they came to the
job, and made arrangements with representatives of other
subcontractors on the job, such as the plumbing, heating,
and electrical subcontractors, to have their work coordinat-
ed with the roughing in work being performed by the
Employer.
During the finishing stage, Schulist was most often the
only one present at the jobsite with authority to direct the
work operations of the Employer's employees. Between
October 1971 and January 1972, Skippy, who was by then
involved with other jobs, was present at the Madison View
Apartments worksite only about 30 or 40 percent of the
time, and, from January 1972 to March of that year, when
work was concluded, only about 10 percent of the time.
During the latter period,3 Skippy usually came to the
project site for about a half hour before the start of the
workday, and on some days also stopped by briefly in the
afternoon, to confer with Schulist about the progress being
made and to find out whether Schulist needed any
materials; there were some days when Skippy did not come
to the project site at all. Skippy left the details of directing
the work of the 8 or 10 men then on the job entirely to
Schulist, who, without consulting Skippy, and based on his
own judgment of what individual employees were most
capable of doing, made the specific work assignments to
I Skippy while on the jobsite spent much of has time personally handled the payroll, and did the estimating work . When he was engaged in
performing work tasks , such as operating the bulldozing equipment, work at the office, which was about I day a week , Schulist directed the work
unloading materials with the forklift, helping with the layout work, and of his crew.
working along with the roughing in crews. 3 It was during this period that Schulist engaged in the conduct found by
2 Guzman also served as the Employer 's material expediter on the job , Respondent to have been in violation of its "no contract-no work" rule.
WISCONSIN RIVER VALLEY DISTRICT COUNCIL 225
the employees and also checked on their performance.
During the finishing stage of construction , Schulist spent
most of his time on supervisory activities, working with the
tools of his trade only when he was caught up with his
supervisory duties; this amounted to only 30 percent of his
time.
Concerning Schulist's exercise of supervisory authority
in specific respects-in addition to his assignment and
direction of work, which have already been covered-the
General Counsel's witnesses testified to the following
effect: Although Skippy himself did all the hiring, Schulist
on some occasions interviewed job applicants at the project
in Skippy's absence. Several employees working at the
project were hired by Skippy on Schulist's recommenda-
tion. Several employees working at the project were
discharged by Skippy on the recommendation of Schulist
who had found fault with the quality of their work
performance. When it became necessary to reduce the
work force at the end of the roughing in stage, Skippy
consulted with Schulist, and, relying on Schulist's greater
familiarity with the abilities of the men acquired from
Schulist's experience in working more closely with them,
followed "generally" Schulist's recommendations as to
who should be selected for layoff. On a number of
occasions, usually involving cement finishing work, Schu-
list, as he was authorized to do, assigned overtime work to
employees without consulting Skippy. Schulist also could,
and did, grant employees' requests for time off to attend to
personal business. And, when inclement weather precluded
scheduled work operations, Schulist also could, and did,
decide on his own whether to assign employees to other
work or send them home.
2. Findings
Accepting at face value the above-summarized testimony
of Schulist and Skippy, which stands on this record
uncontradicted, there is clearly more than enough to
support a finding that Schulist occupied the status of a
2(11) supervisor. Respondent urges , however, that the
testimony of these witnesses should be ruled insufficient
for two reasons. It contends, first, that, as both Schulist
and Skippy have a direct interest in the outcome of this
case, no probative weight may be given to their "self-
serving" testimony because of the absence of corroborating
testimony by disinterested witnesses . It contends, secondly,
that, as the complaint specifically alleges that Schulist
occupied the status of a "superintendent," not merely that
of a supervisor, and as "the theme of the General Counsel's
case" was that Schulist was "the man who was running this
$1,200,000 job," the burden was on the General Counsel, if
he would support his complaint, to prove no less, and that
this the General Counsel failed to do by credible evidence.
Respondent's first contention is clearly without sub-
stance . There is no principle of law applicable to Board
proceedings that requires the testimony of interested
witnesses to be ignored or rejected simply because of the
absence of corroboration. Moreover, Respondent has
shown no reason why the same disinterested witnesses who
it says must have been available to the General Counsel
("employees, subcontractors, material men, architects")
could not also have been available to it. As for Respon-
dent's second contention, the testimony of the General
Counsel's witnesses did impress me as overdrawn in
attempting to portray Schulist as the one who was
primarily charged with responsibility for running the
Madison View Apartments project on behalf of the
Employer, and was therefore vested with the full range of
authority normally associated with a job superintendent's
position. This is particularly so insofar as that testimony
related to the roughing in stage during which Skippy made
it his business to be personally present at the project 90
percent of the time. But neither the General Counsel's
failure to establish convincingly that Schulist actually
occupied the position of a "job superintendent," in the
sense in which that term is usually understood, nor the
complaint's inaccurate characterization of Schulist's posi-
tion as such, may properly be regarded as dispositive of the
issue of Schulist's supervisory status. That issue must be
determined not on the basis of the job title held, or on its
propriety, but by application of the standards defined in
Section 2(11) of the Act. Nor does the overstatement by the
General Counsel's witnesses in that one respect necessarily
require, for that reason alone, rejection of their testimony
in all other respects.
On the entire record, I find nothing inherently implausi-
ble in, and no adequate basis for discrediting, the
uncontroverted testimony of the General Counsel's wit-
nesses relating to the specific respects in which Schulist
actually exercised attributes of supervisory authority .4
Based upon the testimony I find plausible, I am satisfied,
and find, that in directing the work of the crew he
controlled during the roughing in stage of the job, and,
even more so, in directing the 8 or 10 employees who
remained on the project for the finishing work, Schulist
was called upon to, and did, exercise authority of
sufficiently substantial responsibility to place him in the
category of a 2(11) supervisor, for that reason without
more. My conclusion that Schulist's status was indeed that
of a statutory supervisor, rather than simply that of a straw
boss or leadman as'Respondent contends, is buttressed by
the further testimony I find plausible evidencing the
effective weight that has been given Schulist's recommen-
dations concerning the hiring, firing, and layoff selection
of employees and the authority he has exercised with
respect to the assignment of overtime work and the
granting of employees' requests for time off.
Accordingly, I find that at all times material herein,
Schulist was a supervisor within the meaning of Section
2(11) of the Act.
D. As to Schulist's Status as an Employer
Representative Within the Purview of Section
8(b)(1)(B)
Under prevailing Board law, it is unnecessary to go
beyond the finding that Schulist was a 2(11) supervisor to
support the further finding that he was also an employer
4 Respondent's cross-exanunation of Schuhst and Skippy was focused the job as a whole, and left virtually unchallenged the witnesses ' specific
almost exclusively on an effort to impeach their testimony that Schulist was testimony relating to Schulist 's actual exercise of authority.
a "job superintendent" charged with the primary responsibility for running
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative within the ambit of Section 8(b)(1)(B). The
Board in earlier cases has made it clear that the reference
in that section to "r;.epresentatives for the purposes of
collective bargaining or the adjustment of grievances"
must be broadly construed in line with what has come to
be known as the "reservoir doctrine ." That doctrine, which
was first enunciated in the . Toledo Blade case ,5 has since
been crystalized into what now appears to be an estab-
lished Board principle that
All persons who are "supervisors" within the meaning
of the Act are employer "representatives for the
purposes of collective bargaining or the adjustment of
grievances" within the purview of Section 8 (b)(1)(B) of
the Act.
See Operating Rngineers, Local No. 501 (Anheuser
Busch, Inc.), 1991siLRB 5-5-1 ; Tom-Newspaper Guild,,
(Times Publishing Company), 196 NLRB 1121 , enforce-
ment denied 489 F.2d 416 (C.A. 3, 1973). Under the
principle last stated , it is unnecessary to show that the
supervisor involved had ever actually represented the
employer in collective bargaining or in the adjustment
of grievances, or, if not , to show that he was vested at
least with theoretical power to be such a representative,
or even to show that he occupied the kind of position
which made it likely that he would be cast in such a
representative role should certain types of grievances
arise . The conclusion that a statutory supervisor is also
an 8(b)(1 )(B) employer representative within the intent
of Section 8(b)(1XB) is considered to be an automatic
one .6
In the instant case, there is no need to rely solely on the
principle quoted above . For this record also supplies an
evidentiary basis for finding Schulist to be an employer
representative for the adjustment of grievances . Thus, both
Schulist and Skippy testified that Schulist was specifically
authorized to resolve employee grievances when necessary.
Their generalized testimony to that effect is specifically
supported by Schulist's testimony , credited in this respect,
citing two instances in which he actually participated in the
resolution of employee grievances . One involved a com-
plaint directed to him by employees during the roughing in
stage of the project about the insufficiency of toilet
facilities. Schulist satisfied that complaint , without first
consulting Skippy, by directing two of the members of his
crew to join hint in erecting an additional outhouse on the
project . The other involved an employee 's complaint to
Schulist that he had been shortchanged on his paycheck.
Schulist, after determining from his personal work records
that the complaint was a meritorious one, took up the
matter with the person who handled the Employer's
payroll records, and the employee's complaint was satisfied
when the employee's payroll record was found to be in
error.
The particular nature of the supervisory position Schulist
occupied during the period when he was found by
Respondent to have violated its "no contract-no work"
rule is an additional factor that must be accorded
significance . It will be recalled that during that period
Skippy was absent from the jobsite 90 percent of the time,
visiting the site to confer with Schulist for only brief
periods, usually before the employees started work. As the
supervisor delegated the authority and responsibility to
direct employees in their work, and the highest manage-
ment representative having direct contact with the employ-
ees at the jobsite, Schulist was the employer representative
to whom the employees would naturally be expected to
look for the adjustment in the first instance of their on-the-
job complaints, should any arise. And from this, I find, it is
reasonable to infer that authority to handle and if possible
to settle such grievances must have been a corollary
incident to Schulist's authority to direct work. Such an
inference is, of course, consistent with, and tends to
support, the generalized direct testimony of the General
Counsel's witnesses as to Schulist's grievance adjustment
authority.
Accordingly, I find that Schulist at the times material
herein was a representative of the Employer for the
purposes of collective bargaining and the adjustment of
grievances within the meaning of Section 8(b)(1)(B) of the
Act.
E. As to Respondent's 10(b) Defense
Before reaching the question whether Respondent's
conduct vis-a-vis Schulist amounted to unlawful restraint
and coercion within the meaning of Section 8(b)(1)(B), it is
necessary to pass on Respondent's 10(b) defense. As noted
above, the complaint alleges that each of the following
actions of Respondent constituted, separately, a violation
of that section : (1) issuing the internal union complaint
against Schulist and summoning him to appear before
Respondent's trial committee on September 30, 1972, to
defend himself against charges that he had violated
Respondent's "no contract-no work" order; (2) levying the
fine of $1,300 against Schulist on September 30, 1972, for
violation of that order; and (3) instituting an action against
Schulist in the state court on or about June 22, 1973, to
collect the $1,300 fine. As the charge herein was not filed
until August 20, 1973, it is Respondent's position that no
consideration may now be given to the alleged violations
that are based on the conduct referred to in items (1) and
(2), above, which occurred well outside the 6-month
limitation period of Section 10(b). Although the conduct
referred to in item (3) did occur within the 6-month period,
it is Respondent 's position that its action to collect the fine
cannot be found unlawful because such a finding would
have to rest on a finding that the fine itself is an unfair
labor practice, and the latter finding, it says, is precluded in
this case by Section 10(b).7
5 Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-
Engravers International - Union (The Toledo Blade Company, Inc.), 175 NLRB
1072, enfd . 437 F.2d 55 (C.A. 6, 1971 ). See also , e.g., International Assn. of
Heat & Frost Insulators, (Cork Insulating Company of Wisconsin, Inc.), 189
NLRB 854; Detroit Newspaper Printing Pressmen 's Union No. 13 (The Detroit
Free Press), 192 NLRB 106.
6 The Board's position in this respect was disapproved by the Third
Circuit Court of Appeals in Erie Newspaper Guild v. N.LR.B, 489 F2d 416,
but is apparently still adhered to by the Board.
7 Board precedent supports Respondent's reasoning as to the interdepen-
dence of such findings where Sec . 10(b) is involved . See International
Association of Machinists (Union Carbide Co.), 180 NLRB 875. The court in
WISCONSIN RIVER VALLEY DISTRICT COUNCIL 227
I find merit in Respondent's 10(b) defense only as it
applies to Respondent's conduct referred to in item (1),
above, but not in its asserted application to Respondent's
actions in levying the fine and in thereafter instituting
action to enforce its collection. The evidence in this record
is undisputed that, although the fine was levied by the
Union's trial committee on September 30, 1972, Respon-
dent did not notify Schulist of the fine, and neither Schulist
nor the Employer became aware of it, until about June 22,
1973, when Respondent instituted action against Schulist
in the state court to collect the fine. The Board has held in
analogous circumstances that the 6-month limitations
period prescribed by Section 10(b) does not begin to run
on an alleged unfair labor practice until the person
adversely affected is put on notice, actually or construc-
tively, of the act constituting it. Alabaster Lime Company,
Inc., 194 NLRB 1116, 1118; L. C. Cassidy & Son, Inc., 185
NLRB 920, 926.8 I find no substance in Respondent's
argument that Schulist, having been notified of the union
trial, has no standing now to disclaim notice of its
outcome. The law is clear that a union has a fiduciary duty
to notify a member of any adverse action it takes against
him before that action becomes binding on the member.
Teamsters Local Union No. 122 (Busch & Co.), 203 NLRB
No. 157; Progressive Mine Workers (Peabody Coal Co.), 173
NLRB 1237. Moreover, as a supervisor, Schulist had no
duty to respond to the union charges against him; indeed
the Board has held it to be a violation of Section 8(b)(1)(B)
for a union to fine a supervisor for not doing so. San
Francisco-Oakland Mailers Union (Northwest Publications,
Inc.), 172 NLRB 2173; Sheet Metal Workers (H. J. Otten
Company), 193 NLRB 23, 26.
Accordingly, save in the limited respect noted above, I
reject Respondent's 10(b) defense.
F. As to the Alleged Unlawful Restraint and
Coercion; Analysis and Concluding Findings
The basic principles of law that must guide decision on
the issue of whether Respondent's conduct in fining
Schulist and in thereafter instituting action to collect the
fine constituted unlawful restraint and coercion within the
meaning of Section 8(b)(1)(B) are clearly defined by
established Board precedent. The Board holds that any
internal union discipline that is directed against an
employer's representative, and is designed or has a
reasonable tendency to dilute the representative's fidelity
to management 's interests, is as much within the intended
scope of the 8(b)(1)(B) prohibition as is a union's coercive
pressures directly against an employer aimed at forcing
changes in the identity of management representatives. To
constitute restraint and coercion under Section 8(b)(1)(B),
as the Board construes that section, it is not essential that
the discipline imposed on the supervisor-member be linked
to his performance of supervisory or managerial functions;
it is enough that the discipline is related in some manner to
an underlying dispute between the employer on the one
hand and the union on the other .9 Union discipline of a
supervisor-member is viewed by the Board as falling
outside the proscription of Section 8(b)(1)(B) only where
the union offense occasioning the discipline involves a
matter purely of internal union administration, unrelated,
either directly or indirectly, to any dispute between the
union and the employer, or to the supervisor's relationship
and fidelity to his employer. 10
In the case at hand, there can be no doubt that the umon
offense for which Schulist was disciplined-working for
the Employer in disregard of Respondent's "no contract-
no work" order-concerned more than a matter of purely
internal union administration. It was directly related to an
underlying labor dispute between Respondent and Schu-
list's employer arising from the latter's unwillingness to
become a signatory to Respondent's area contract. Contra-
ry to Respondent's contention, it is immaterial under
Board law that the fine imposed on Schulist had nothing to
do with his performance of supervisory functions, but was
bottomed entirely upon his continuing to work for the
Employer with the tools of his trade. The Board in
analogous circumstances has repeatedly and consistently
rejected like contentions, holding that umon disciplinary
action taken against a supervisor-member need not be
related to the performance of his supervisory functions to
constitute restraint and coercion within the proscription of
Section 8(b)(l)(B).1i
The only question remaining is whether Respondent's
lack of knowledge of Schulist's supervisory status when it
levied the fine against him constitutes a defense to its
otherwise unlawful conduct. I hold that it does not.
Respondent's good faith is not involved, for the test of
restraint and coercion under Section 8(b)(1)(B) turns not
on the union's motive, but on whether the union engaged
in conduct which, it can be reasonably said, tends to
restrain or coerce employers within the intent of that
section. Nor is there anything in the language of Section
8(b)(1)(B) that prescribes scienter as an element of that
unfair labor practice.12 In its inhibitory impact upon
Schulist and the Employer, the coercion inherent in
Respondent's conduct in levying and in thereafter seeking
to collect the fine was not less because Respondent was
unaware of Schulist's supervisory status when it levied the
fine, and in theory might not have taken that action
otherwise.13 Even if it be assumed that Respondent would
the cited case reversed the Board and held that a suit to collect a fine, which
but for Sec 10(b) would have been found unlawful, was independently
violative of the Act. Shumate v NLRB, 452 F.2d 717 (CA 4,197 1) On
remand, however, the Board, although adopting the court's position for
purposes of that case, made clear that it was not thereby acquiescing in the
court's view of the law 196 NLRB 785 But cf Local 1101 Communications
Workers (New York Telephone Co), 208 NLRB No 32
8 See , also, N L, R B v Shawnee Industries, Inc, 333 F 2d 221, 224 (C A
10, 1964)
9 See, e g, New Mexico District Council (S S Horner Co), 176 NLRB
797, enfd 454 F 2d 1116 (C A 10, 1972), Local No 2150, IBEW (Wisconsin
Electric Power Co), 192 NLRB 77, enfd 486 F2d 602 (C.A 7, 1973),
IBEW, Local 134 (Illinois Bell Company), 192 NLRB 85, reversed and
remanded 487 F 2d 1143 (C A D.C., 1973), cert granted January 1, 1974.
10 See , e.g., Local 453, Brotherhood of Painters, 183 NLRB 187
11 See , e.g, cases cited in fn 9, supra
12 Cf Intl Ladies' Garment Workers' Union, AFL-CIO [Bernhard-
Altmann] v NLRB , 366 U.S 731, 738-739 (1961)
13 Actually, the probability is that Respondent would have acted no
differently had it known Kiyek, who filed the charges against Schulist
leading to the fine, left no doubt in his testimony that the only criterion with
which he was concerned was whether Schulist worked with the tools of the
(Continued)
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not have taken the action it did but for its mistaken belief
that Schulist's work for the Employer was exclusively that
of a journeyman carpenter. I think it evident that in a
situation such as thi-, the Union should be held legally
chargeable for and be required to remedy the conse-
quences of its mistake. Although Section 8(b)(1)(B) is
framed in terms of restraint and coercion of an employer, it
has been interpreted in practical effect as also shielding a
supervisor from union discipline for conduct connected
with his employment relationship. Here, as a result of
Respondent's mistake, Schulist has been penalized by
Respondent in the amount of $1,300 for engaging in
conduct that the Board holds is immune under the Act
from union discipline. While Respondent's attitude in
imposing the fine might not be otherwise censurable, it is
only just and proper that, as between Respondent who
made the mistake and Schulist who was the victim of it, the
perpetrator should bear the onus of its own error. This
conclusion, while giving Schulist the protection assured by
the Act, imposes no particular hardship on Respondent, as
the unfair labor practice determination to which it leads
will require Respondent by way of remedy simply to
refrain from conduct the law condemns and to relinquish
its claim to a fine which under the law it could not have
rightfully imposed.
Accordingly, on all the evidence and for the reasons that
have been stated, I conclude and find that Respondent
engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(b)(1)(B) and 2(6) and (7)
of the Act by fining Schulist for failing to comply with its
"no contract-no work" order, and by thereafter instituting
action against Schulist in an attempt to collect the fine.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(l)(B) of the Act,
it will be recommended that Respondent be ordered to
cease and desist therefrom, and from like and related
conduct, and that it take certain affirmative action which I
find necessary to effectuate the policies of the Act,
including the rescission of its action in fining Schulist, the
expunging of all records thereof in its files, and the posting
of appropriate notices.
Upon the foregoing findings of fact and conclusions, and
the entire record, I issue the following recommended:
ORDER 14
Respondent, Wisconsin River Valley District Council of
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, its officers, agents, and representa-
tives, shall:
carpenters ' trade, if Schuhst did, he was not a supervisor , according to
Kiyek's definition of that term
14 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1. Cease and desist from:
(a) Restraining or coercing Skippy Enterprises, Inc., in
the selection of representatives for the purposes of
collective bargaining or the adjustment of grievances by
fining, otherwise disciplining, or attempting by any means
to collect or enforce any fine or discipline imposed against
any such representative, including Raymond Schulist for
failing to comply with a "no contract-no work" order, or
similar order of Respondent, or for working for Skippy
Enterprises, Inc., while Respondent is engaged in a labor
dispute with that Employer.
(b) Engaging in any like or related conduct constituting
such restraint and coercion.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Rescind and expunge all records of the fine levied
against Raymond Schulrst on September 30, 1972, because
he had worked for Skippy Enterprises, Inc., in violation of
a "no contract-no work" order of Respondent.
(b) Advise Raymond Schulist in writing that the said fine
has been rescinded and that the records of such fine have
been expunged.
(c) Post at its business office and meeting hall copies of
the attached notice marked "Appendix." 15 Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Furnish the Regional Director for Region 30 signed
copies of said notice for posting by Skippy Enterprises,
Inc, if willing, in places where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Skippy Enterprises,
Inc., in the selection of representatives for the purpose
of collective bargaining or the adjustment of grievances
by fining, otherwise disciplining, or attempting in any
manner to collect or enforce any fine or discipline
heretofore imposed against any such representative,
including Raymond Schulist, for failing to comply with
a "no contract-no work" order, or similar order, or for
working for Skippy Enterprises, Inc., during a time
when we are engaged in a labor dispute with that
employer.
WISCONSIN RIVER VALLEY DISTRICT COUNCIL
WE WILL NOT engage in any like or related conduct
constituting such restraint or coercion.
WE WILL rescind and expunge all records of the fine
levied by us against Raymond Schulist on September
30, 1972, because he had worked for Skippy Enterpris-
es, Inc ., in violation of our "no contract-no work"
order.
WISCONSIN RIVER VALLEY
DISTRICT COUNCIL OF THE
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO
(Labor Organization)
Dated By
229
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Commerce Building, Second Floor, 744 North Fourth
Street, Milwaukee, 'Wisconsin 53203, Telephone 414-
224-3861.